AKRON BEACON JOURNAL
Two lives, two trials transformed by unused defense files
Gondor and Resh retrials to focus on evidence original lawyers claim prosecutor never made available
Sun, Mar. 04, 2007
By Ed Meyer
Beacon Journal staff writer
RAVENNA - Had it not been for two different attorneys in two separate murder trials making the identical, serious mistake some 16 years ago, Randy Resh and Bob Gondor might not be in the situation they find themselves today.
Yet as the two Portage County men await new trials in the 1988 slaying of a Randolph Township woman, the curious coincidence looms large in the history of their cases.
Somehow, while preparing independently for separate trials two months apart, both lawyers missed the same pieces of potentially exonerating evidence, according to a unanimous decision handed down by the Ohio Supreme Court in late December, overturning the convictions.
How could such a thing happen?
Columbus lawyer James D. Owen -- the first to reveal the evidence never heard by the Resh and Gondor juries -- said it was not by happenstance.
``I can't tell you what the odds are,'' Owen said last week. ``But I can tell you I just don't think it's possible.''
Owen, who launched the post-conviction phase of the case in 1996, said he has always believed, despite no longer working for Resh and Gondor, that the original Portage County prosecutor, David W. Norris, was at the bottom of it all.
Although legally obligated to provide the defense with all of the police and prosecution evidence, Norris simply ``never made the exculpatory evidence available,'' Owen said last week.
Norris, who resigned in 1994 after pleading guilty to a federal charge of cocaine possession, has consistently denied withholding any evidence, saying he started an ``open-file'' policy in the Portage County justice system, which remains in effect today.
Under that policy, Norris said in previous court testimony, he granted defense lawyers unfettered access to all police investigative reports and any other evidence compiled by the state before trial.
Norris said he even provided copies of the trial notebooks he used as ``first chair'' in the prosecutions of Resh and Gondor.
Familiar faces at retrial
Their new lawyers, however, say they intend to press that issue by calling Norris to the stand in late March, when Resh is to go before Common Pleas Judge Laurie J. Pittman in the first of the new trials.
On Friday, with the prosecution citing news media interest in the case, Pittman issued a gag order for the Resh retrial, saying she did so to ensure ``fair and impartial jury selection.''
Former Cleveland Safety Director James A. Draper, Resh's original lawyer, and longtime Cleveland defense lawyer Gary H. Levine, Gondor's original lawyer, also are likely to be called as defense witnesses.
Draper, in semiretirement, and Levine, still involved in defense practice, both testified in May 2002, when Resh and Gondor won their first court order for new trials after an eight-day hearing in Portage County before visiting Judge Charles J. Bannon.
Then, as now, both said they will not paint a rosy picture of the Portage County justice system when Norris was in control.
``David Norris did not follow his own policy, for whatever reason,'' Levine said on Thursday. ``He can say he did from now until the next Ice Age, but it simply was not followed in that case.
``I can't look into his own mind, but I've said it before and I've said it under oath and I've said it in affidavits -- we wouldn't be having this conversation if he had followed his policy. And these men would not have been in jail for more than 16 years.''
Crucial evidence
Levine, who attended the bond hearing in January when Resh and Gondor were released under house arrest to prepare for their new trials, also brought up a question that has remained unanswered for all these years.
``Isn't it curious,'' Levine asked, ``that both lawyers would have independently made a decision, which makes no sense, to not utilize such important information... ? That defies any logic.''
Norris, however, said in an Akron Beacon Journal interview three months after Bannon's 2002 order for a new trial that he set up an office for Levine and Draper with their own personal telephone to go over his pretrial files.
Levine said Norris was ``hiding behind that policy,'' citing one of the most important documents in the case -- a 50-page interview of the first man arrested and convicted for the murder, Troy Busta of Hiram.
Owen referred to it in his Ohio Supreme Court arguments, saying the Resh and Gondor juries were ``never armed with the truth.''
Richard J. Ofshe, an experts on police interrogations, has said it was the most revealing document he had ever seen in a criminal case.
Busta's interview
In September 1988, during a tape-recorded interview by Busta's two lawyers and their private investigator, Busta said he was willing ``to do anything I have to do to get myself out of this.''
Bannon wrote in his 2002 findings of fact and conclusions of law that initially Busta even made the statement: ``I don't know who did this.''
That interview, released to defense lawyers during the early phase of the post-conviction hearings by the first visiting judge in the case, William F. Chinnock of Cuyahoga County, took place only days before Busta's mother was arrested on a felony charge of trying to sneak a lock-blade knife into the county jail for her son, court records show.
Months later, Troy Busta struck a plea bargain with prosecutors to avoid death row. If he would confess, prosecutors would allow him to plead guilty to a lesser charge.
So Busta confessed, and he testified at the Resh and Gondor trials that they were his co-conspirators in the crime.
Levine said he never saw that interview in his pretrial discovery.
``If I was a lawyer out of law school for 30 days and had never tried a case before, I would not have used that if I had seen it?'' Levine asked. ``It's incomprehensible.''
`We would have won'
Likewise, Draper said last week he also did not see the potentially exonerating evidence referred to in the Supreme Court ruling.
``As I testified, it was not provided to me,'' Draper said. ``The state has an ongoing duty to disclose, as well as the defense. I was not given that information. Had I been given that... I think we would have won the case.''
Draper said he and his private investigator were, in fact, given an office by Norris to review the pretrial files.
``He should have let me know that Busta changed his tune at least a couple of times,'' Draper said, ``but I didn't have that. Nor did I know his mother had tried to bring a weapon into the jail.
``I had no idea about that stuff. Between me and my investigator, I cannot tell you I went through every page (of the file), but I certainly tried to.''
Maybe the greatest injustice in the case, Levine said, is the perception only that Resh and Gondor were wrongfully convicted for the murder.
Connie Nardi, a divorced mother of two from Randolph Township, was the victim. She was 31. On Aug. 14, 1988, she was beaten and strangled to death, according to court records, and her body was found in a Geauga County pond just north of the Portage County line.
``You know what I think was the greatest injustice? A young girl was murdered,'' Levine said, ``and they held the wrong people accountable.''
Ed Meyer can be reached at 330-996-3784 or emeyer@thebeaconjournal.com.
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